delivered the opinion of the court.
This is an appeal from a judgment of the Court of Probates, upon a rule taken upon the sheriff, to show cause why he should not amend his return to a service of a notice of judgment, so as to show at whose instance and request it was made.
The points filed by the counsel for the appellant, appear to us to have no application to this case, but to another appeal from the final judgment rendered in the case to which it refers. He contends that the plaintiff' has lost his right of appeal in that case, by acquiescing in the judgment rendered, and the object of this rule was to show his acquiescence by showing, that he procured a notice of judgment to issue and to be served.
The court on the trial of this rule did not, in our opinion, err> refusing to inquire at whose request the service of notice of judgment was made. The sheriff cannot be compelled to amend his return, and the plaintiff who has recovered a judgment, may well give notice of it to his adversary, in order to hasten a suspensive appeal on his part, inasmuch as upon such an appeal the appellee might procure an amend-uient of the judgment in his favor.
It is, therefore, ordered, adjudged and decreed, that the judgment of the Probate Court be affirmed, with costs.